MALICE IN THE LAW OF TORTS

I
MR.JUBTICE MCCARDIE once complained about the word “ malice ”
that it had been the subject of “ a regrettable exuberance of
definition.”’ There can be little doubt that this complaint was
justified. Despite the well-known division and discussion by
Bayley J. of “ malice in fact ” and “ malice in law,” ’ which can
be taken as the starting point of modern analysis of malice, other
judges have not hesitated to enlarge upon the possible meanings of
malice, until it seems that there must be judicial authority for any
or almost any meaning that a writer wishes to attribute to the
word. However, these various interpretations can be grouped under
four main headings: (1) spite or ill-will; (2) any improper motive;
( 8 ) the intent to do a wrongful act; (4) the intent to inflict injury
without just cause or excuse.
The use of “ malice ” to mean spite or ill-will is early. It is
quite clear that in this sense the word is being used colloquially, not
as a term of art. “Malice in common acceptance,” said Parker
C.J. in 1718’ “is a desire of revenge or settled anger against a
particular person.” A hundred years later, in a famous passage in
Bromage v. Prosser, Bayley J. called this ‘‘ malice in fact ” and
said it meant “ill-will against a person.” The effect of later
authorities was summed up by McCardie J.’s expression “ vindic-
tive feeling.” When used in this sense, therefore, malice involved
the desire to satisfy a personal grudge and thereby t o benefit the
person who acted from malice.
But the older idea of vengeance, which as just seen involved at
least emotional benefit to the malicious person, tended in the latter
part of the nineteenth century to become absorbed in a broader
notion of any motive which was regarded as undesirable by the
courts of approval and encouragement. As a result, “malice ”
came to mean any improper motive. To quote McCardie J. once
again, ‘‘ the jurist ...
enlarged the layman’s notion of malice.” ’
Thus in 1858 it was said that there was ‘‘ express malice ” where
a party animated by a desire for vengeance or other bad passion,
chooses t o inflict injury on another person. Lord Campbell ’ spoke

1 Br. Rly. Traffic and Electric Co., Ltd. v. C . R . C . CO., Ltd. [l022] 2 K.B. 260
nt p. 268.
2 Bromagc V. Proaaer (1825)4 B. & C. 247.
3 Jonea v. Gioin (1713)Gilb. 185.
4 Pratt v. B . M . A . [1919] 1 K.B. 244 nt pp. 275-276.
6 Ibid.
6 Re Nolan (1853)22 L.T. (0.8.) 108.
7 Dickaon v. Earl of Wilton (1859)1 F. & F. 419 at p. 427.
484
SEPT.1968 MALICE IN THE LAW OF TORTS 435

of " any indirect motive, other than a sense of duty "; Erle C.J.'
of '' corrupt motive or any departure from duty "; Crompton J.'
of '' any improper motive," and rejected the idea that malice meant
"merely spite." Coming to more modem times, in B d d e n v.
Shorter lo Maugham J. called malice "some dishonest or otherwise
improper motive," which statement was approved and adopted by
Harman J. in Loudon v. Ryder (No. 2)." It seems clear that
when malice was given this meaning it referred not to any desire t o
benefit the malicious person, however indirectly, but to the desire
to inflict injury merely for the sake of inflicting such injury. Hence
Evatt J.'s statement that malice meant '' disinterested malevo-
lence " and the definition given by Holmes J. in 1894 that malice
meant '' a malevolent motive for action without reference to any
hope of a remoter benefit to oneself to be accomplished by the
intended harm to another." This is a very different idea from the
simple notion of spite or ill-will which was what malice meant for
Parker C.J. and Bayley J. Yet it is not what they understood by
"malice in IawyYyeven though some .judges in the nineteenth
century, for example, Baron Bramwell in Melia v. Neate," seem
t o have suggested that '( malice in law y y meant some kind of dis-
interested malevolence. The confusion, it is suggested, results from
the fact that in a sense this meaning of malice is an artificial
meaning adopted by the courts for the purpose of law; but it is
not the same as what may be described as the technical meaning
of malice, to which Parker C.J. and Bayley J. gave the name
'' malice in law."
One of the meanings given to "malice in law y y is the intent
t o do a wrongful act.15 Though this looks a t first sight more like
a connotation used in criminal law, rather than the law of torts, it
Bnds its way into cases of tort. Perhaps the most famous descrip-
tion of malice in,this sense is contained in the judgment of Bowen
L.J. in the Mogul case." There he said that ccmaliciously . ..
means and implies an intention to do an act which is wrongful to
the detriment of another. ... The term 'wrongful' imports in
its turn the infringement of some right." But a second look at t h i s
description reveals that it is too full of words which themselves
8 Hibbs v. Wilkimon (1859) 1 F. & F. 608 at p. 610; Turnbull v. Bird (1861)
2 F. & F. 508 a t D. 524.
9 Hall v. Semple (1862) 3 F. & F. 337 at p. 857. Cf. ale0 Clark v. Molyneuz
(1877)3 Q.B.D. 237 a t p. 247 (" any wrong feeling in a man's mind ").
10 [1933 Ch. 427.
11 [l953! Ch. 423
12 McKernan v. Fraser (1931)46 C.L.R. 343 at p. 398.
1s Privilege, Malice and Intent," 8 H.L.R. 1, reprinted in Selected Essays on
I'

the Law of Tort, 162, a t p. 163.

14 (1863)3 F. & F. at p. 763: he called malice " in law " anv undue or indirect
object.
15 Rawson's Law Lexicon (1883)at p. 199.
1* (1890)23 Q.B.D. 598 at p. 612; cf. Lord Campbell " a conscious violation of
the law. to the prejudice of another " (9 C. & F. 321) and Lord Lindley in
South Wales Miners' Federation v. Glamorgan Coal Co., Ltd. [1905] A.C.
239 at p. 258.
486 THE MODERN LAW REVIEW VOL. 21

require further analysis to be satisfactory. Indeed there is a much

more frequently met definition of “ malice in law,” at least for the
purposes of the law of torts.
This is the description of malice as the intent to inflict injury
without just cause or excuse. Parker C.J. in Jones v. Givin said
nothing about intention, but did say that malice as a term of law
always excluded a just cause. It was Bayley J.17who introduced
the notion of intention when he called malice in law “ a wrongful
act done intentionally without just cause or excuse,” a phrase which
as we shall see bristles with problems. But the language of Bayley
J. was repeated or echoed throughout the nineteenth century la and
still seems to be favoured by the courts. Thus in R e N o h in
1858 malice was described as “ where a party in full possession of
his faculties... chooses to commit injuries upon another without
reasonable cause.” The use of the word “reasonable” is an
interesting variant, although sometimes it has been said that malice
and lack of reasonable cause are the same thing. But this must
be a proposition of doubtful validity, at least in respect of the tort
of malicious prosecution if nowhere else, though it can be said that
lack of reasonable cause for a prosecution may well evidence malice.
However the statement in Re Nolan illustrates how flexible the idea
of malice in law became after Bayley J. However, his words were
not forgotten, nor were those of Parker C.J. Collins M.R. in
Read’s casea0said that the action of the defendant in inducing a
breach of contract by a combination to coerce X into dismissing
the plaintiff because he was not a member of the defendant’s
society was malicious or, he went on, “ if the phrase be preferred
‘without just cause or excuse ).” Later in his judgment he talked
of “what might in given circumstances be ‘ just cause’ or in
other words sutiice t o negate malice.” More recently, in Jones v.
Motor Surveys Ltd.,’l Roxburgh J. referred to malice as the “wilful
and intentional doing of damage without just cause or excuse ”; ,

and in 1955 the Court of Appeal 2 2 quoted with approval the words
of Bayley J. and went on t o say that ‘‘ intentionally ” in Bayley
J.’s definition referred to the doing of the act; it did not mean that
the defendant meant to be spiteful, though sometimes, as for
instance to rebut a plea of privilege in defamation, malice in fact
had t o be proved.
After such a multiplicity of citations it is obvious that the
subject of malice is complex. Perhaps the first comment that
17 Bromage v. Prosser, supra. n. 2.
18 e.g., b Littledale J. in M’Pherson v. Daniels (1829) 10 B. & C. 263 at p.
272; dartin B. in Johnson v. Emerson (1871)L.R. 6 Ex. 329 at p..!!3 Cf.
aleo Lindley L.J. in Stuart v. Bell [lSSl] 2 Q.B. 341 at p. 351: every
unjuetifiable intention to inflict injury.”
19 (1853)22 L.T. (0.8.) 108.
10 Read v. Friendly Society of Operatioe Stonemasons [1902] 2 K.B. 732 at p.
738.
2 1 [1948] Ch. 252.
22 Jones Bros. v. Steoens [l955] 1 Q.B. 276 at p. 280.
S x w . 1958 MALICE IN THE LAW O F TORTS 487

should be made is that the law has developed so far from the
elcmcntary principles of the early nineteenth century that i t has
outgrown the old dichotomy initiated by Parker C.J. and Bayley
J. between malice in fact and malice in law. Though a t first sight
the phrases have the attraction of simplicity and easy application,
i t must be clear from what has been said above that their apparent
simplicity is a snare and leads to confusion. A different analysis
is required in the light of modern cascs, which, while repeating the
old formulae, arc really invoking them for new uses, which in turn
rcquire new expressions. The division I should like to suggest is
betwccn " improper motive " and " wrongful and unjustified
intention." Both these ideas have evolved from the analysis of
Parker C.J. and Baylcy J.; but they go beyond it. What they
involve must now be considered.

I1
I n thc first place there is the notion of " improper motive " which
replaces the old idea of " malice in fact." I n determining that X
has behaved " maliciously " in this sense a court is really saying
that X's actions arc what Judge Ormsby called, sixty-five years
agoY2"" morally rcprchensible." Deciding such an issue does not
of itself conclude any legal issue; for it remains t o be seen whether
a " morally reprehensible " act is also an unlawful, i.e., tortious
one. I n this way questions of motive, which involve moral issues,
come into the law of torts. " Mnlicc in fact," even in the attenuated
meaning given by Baylcy J. , involved considerations of motives
and this was certainly true of latcr claborations of Bayley J.'s
cxprcssion. Hence Lord Collins's remarks *' that " without just
cause or excuse" was not an equivalent of what the common law
understood by malice, and that i t would not be possible, in civil
actions any more than criminal, to eliminate motives from the dis-
cussion. I n fact, both in criminal law and the law of torts, the
courts have frequently determined issues on the basis of morals,
despite judicial assertions t o the contrary. This has been pointed
out by more than onc writer, particularly in America, where con-
siderable effort has been made to elaborate some general theory
of '' malice which took account of The " antiquated
view )'as Prosser calls it,26 that malice, in the sense of motive, is
irrelevant t o tort liability, if it was correct in the time of Judge
Ormsby, whose opinions Prosser was criticising, is certainly not true
today. Recent developments, which will be discussed below, oniy
emphasise the need for some general approach t o the question based
upon the recognition of the importance of motive.
23 " Mslice in the law of Torts " (189.') 8 L.Q.R. 140.

2.1 I n Rend's CRSC , supra. n. 20.

25 S e e , e . q . , Arncs, " Tort bccnnse of a Wronfful Motive" (1905) 18 H.L.R.
411 ; HolineR, I' Privilege, hlnlice nut1 Iuteut '' (1894) 8 H.L.R. 1; Terry.
" Malicious Tort8 " (1904) 20 T>.Q.R. 10.

26 I'rosficr on Torts ('2nd rd.. 1955) nt p. 21, 11. 58.

488 THE MODERN L A W REVIEW VOL. 21

Secondly, the idea of “ intent to inflict injury without just cause

or excuse ” has undergone development which makes the expression
“ malice in law ’) archaic and unsatisfactory, and suggests that an
expression such as “ wrongful and unjustified intention would be
))

more helpful. The basic notion, it is true, can still be found in

Lord Bowen’s famous phrase2’ which speaks of the intentional
doing without just cause or excuse of what is calculated t o damage.
This indicates (1) that the theoretical basis of liability is intention,
not motive (nor, it may be added, negligence), and (2) that there
may be some instances in which the law, if it does not encourage
a t least does not penalise the intentional infliction of injury. But
there is more to be discusscd; for i t is left t o the courts to determine
the division between such instances and others, to decide what is
and what is not “ just causc or excuse ’);and this dividing line has
SO changed its position and shape in the last fifty to a hundred
years that the whole subject needs re-examination.
A preliminary point should be clarified a t the very outset; this
is the difference, in this context, between intention, which I take t o
refer to immediate ends or purposes, and motive, which I take t o
refer t o ends or purposes beyond the immediately obvious.
“Intention ” as used by the courts, is really an originally
unsophisticated notion of law, probably introduced when the law,
especially the criminal law, was too crude to be able easily to
differentiate between motives in order to determine liability, and
when the law of evidence was so rudimentary, for example by
excluding evidence of the parties in civil actions and the accused in
crime, that it was difficult to prove states of mind. At such a
period in the history of English law it was easier to look a t what
X had done and infer from it (if necessary by use of the doctrine
of “natural and probable consequences”) what had been the
immediate end or purpose he desired to achieve, and then to say
that X ‘‘intended )’a certain result. Motive, being a subtler and
more difiicult notion, enters into the consideration of liability later
on. Hence, possibly, i t is not until late in the nineteenth century
that i t began to figure prominently in judgments; and it is not
without relevance that i t does so after the law has been changed
so that parties in civil actions can give evidence, after which time
comes Lord Bowen’s famous remark Z R that “ thc state of a man’s
mind is as much a fact as the state of his digestion.” When this
stage was reached i t becnme possible t o inquire into the ultimate
ends or purposes of acts intended by X. And so motive becomes
more important a t the end of the nineteenth century. However,
there still can be found in cases in the early twentieth ccntury,
particularly those concerning interference with contractual relation-
ships, language which suggests thnt motivc is irrelevant t o the
determination of liability. This seems t o have been stated as law
27 Mogul S.S. Co. v. MeGregor, Gou, A Go. (1889) 23 Q.B.D. 598 at p. (313.
zs Edinglon v. Fitztnaurice (1885) 29 Ct1.D. 459 at p. 483.
SKIT.19.58 MALICE IN THE LAW OF TORTS 489

first in Lumley v. G y e Y Z Q
a t a time when the analysis of Bayley
J. and the later impressions of what '' malice y y meant were in the
air, and as late as 1005 in the South Wales case 3 0 malice, in the
sense of motive, was still excluded as an element of liability in such
cases. But a year later 3 1 Lord Davey drew a distinction between
the effects of a bona fide belief and " a malicious intention to spite
and injure another without just cause." I n 1915, in Larkin v.
Long 32 Lord Atkinson spoke of people acting " maliciously," by
which he seems to have meant from an improper motive; and i t is
iuggested that in recent times, in respect of this tort and others like
it, earlier dislike of testing liability by reference to motive has
begun t o give way t o a realisation that, as Lord Collins said in
Read's case, motive cannot be entirely eliminated from the
discussion.
But here an important difference between motive and intention
must be noted. Motive, where it was accepted in the nineteenth
century as being relevant, was (and is) only one among several
determining factors necessary for deciding that liability in tort
exists. For example, in defamation or injurious falsehood, or
malicious prosecution, and possibly in some instances of nuisance,
a number of facts or conclusions have to be determined before it
can be said that the defendant is liable. Motive is only one of these
facts or conclusions. And i t is a matter of fact. On the other
hand, intention (in the sense in which that expression is being used
in this essay) is a question of law. It is not just a factual element
in the determination of liability: it is the essential legal element
upon which turns the issue of liability. Thus where the law says
t h a t there is no just cause or excuse for intentionally inflicting harm,
then there is tortious liability. By contrast, an improper motive
for acting in a way which causes harm is not of itself and of neces-
sity tortious. For the act which causes harm may not, as a matter
of law, be regarded as a wrongful act. Thus, as will be seen further
below, in the absence of a n improper motive (i.e., without the act
in question being done maliciously), i t is unlikely that there will be
the intention to cause harm without just cause or excuse. But
there may be an improper motive (Le., '' malicious " conduct)
without, in law, an intention to cause harm without just cause or
excuse, and, therefore, without there being any liability. For
example, claiming a debt, a t an awkward time for the debtor,
however maliciously done, and however harmful, is not tortious.
Nor is maliciously but lawfully giving notice to a servant; nor
maliciously prosecuting someone where there is " reasonable and
probable cause for the institution of proceedings (though malice
28 (1853)2 E. k B. 216.
90 South Wales Miners' Federation v. Clamorgan Coal Co., Ltd. [1905] A.C.
2.79 at p. 246, per Lord Macnaghtcn.
$1 Denaby and Codeby Main Collieries Ltd. v. Yorkshire Miners' Association
[IBOG] A.C. 384 at p. 400.
$2 [101.5] A.C. 814 at p. 826.
490 THE MODERN LAW REVIEW VOI.. 31

may negative such reasonable and probable cause) ; nor maliciously

bringing a civil action against someone, however ill-founded the
action be 33; nor maliciously publishing a damaging but true state-
ment about someone (though there may be criminal liability); nor
maliciously expelling a boy from school when the expeller, e.g., a
headmaster, has the power t o d o Whether acting maliciously
in these or other cases that could be suggested should be tortious
is a matter for debate: but a t the moment the courts have not said
that it is. They have restricted the operation of malice in this sense
to certain well-known instances, though, as will be seen later, there
are indications that they may be beginning to extend the operation
of “ improper motive.”
Thus an important practical difference can be found between
motive and intention. “Improper motive” is a question to be
determined by consideration of thc evidence, whereas “ intention ”
(as here used) is an artificial or technical notion of law, which
depends partly upon the subjective desires of the defendant, partly
upon the objective policy of the law. “ Intention for our purposes ))

is not merely “ desire ’)or “ aim ”: it is also the absence of legiti-

mate excuse for action: intention as here used is really an elliptical
way of saying “intending to cause harm without what the law
considers to be just cause or excuse.” Intention as interpreted by
the courts can be considered an objective idea, dependent upon
current conceptions of what is just and unjust, lawful and unlawful,
whereas motive is subjective in that it turns upon the more shifting
foundations of what individuals at. any given time feel or think is
desirable, particularly in social and economic questions. Hence for
two reasons the courts in England a t any rate (though in the
United States, as Prosser points the courts have not been so
loth to investigate motives), have felt more inclined to base liability
upon the objective notion of intention. I n the first place, they were
thus able t o some extent to avoid entanglement with changing con-
ceptions of what was desirable in economic relationships, particularly
those involving trade unions; secondly, by the use of the test of
intention they could exercise greater control over liability than by
the use of the subjective test of motive which, a t least until rccent
times, would have to be left to juries, upon whose ability to dcter-
mine difficult questions of moral and legal policy English judges
d o not always seem t o have placed great reliance.
However, the courts in the past have allowed motive to play
some role in the determination of liability in tort. Apart from the
well-known cases where motive is relevant as an ingredient in such
liability it seems clear that motive is very relevant to determine
33 ’rllollgh there Recm l o he cxccptionnl c:ises, P.!!., lmnkriiptcy, or windiug iip
petitions, in whicll HU& a n oclion will lic: see Q u a r t z Hill C o t ~ s . &fin. CO.
v . Eyre (1RH3) 11 Q.E.1). 674; Harper ant1 .JanleR, Law of Torts (1966) Vol.
I at p. 326.
34 /fun/ v . Dnmon (1930) .1G T.L.R. 579.
35 I’rosscr on Torts at p. 22.
SEPT.1968 MALICE IN THE LAW OF TORTS 491

whether the necessary intention is present in some if not all cases.

An improper motive can possibly prove the intention to inflict
injury without just cause or excuse. Moreover, the motive of a
party is indicative of whether the law does, or, in a matter that
is res integra, whether the law should consider that such a party
has acted with what amounts to “ a wrongful and unjustified
inten tion. ’’
If this is accepted, and it will be discussed and illustrated in
greater detail later in this essay, then it is possible to express the
present importance and use of malice in the law of torts in this
way :
‘‘
(i) Malice as denoting an improper motive ” can be part of
the plaintiff’s original case, e.g., in malicious prosecution.
(ii) Malice, i.e., any improper motive, can be a reply to the
defendant’s defence, e.g., in some instances of defamation.
(iii) Malice in the sense of “ improper motive ” can be used to
evidence the existence of malice in the sense of “ a wrongful
and unjustified intention.”
In cases (i) and (ii) malice only raises issues of fact : proof of malice
of itself or in combination with proof of other facts concludes the
legal issues. In case (ii) proof of improper motive still leaves open
the legal question whether there is the relevant intention.

m
So long as the common law was concerned with injuries resulting
from a direct or indirect physical contact with a person or his
property, states of mind were not very important for the determina-
tion of liability. Even the development of negligence in the
eighteenth century did not involve the consideration of the defen-
dant’s state of mind so much as the assessment of the legal quality
of his acts or omissions in the light of how the jury thought a
reasonable man would have behaved. Eowever, the development
of defamation and of similar actions, such as malicious prosecution,
which were concerned with attacks on reputation and character
rather than with financial loss, began to make it necessary for the
courts to investigate the defendant’s state of mind at the time he
committed the acts complained of. Possibly the reason for this
was the reluctance by the courts to impose liability for injury to
something other than the safety of a person or his property without
proof that there was a conscious and deliberate desire to inflict the
harm in question. If this had not been done, then the courts would
have had to allow actions more or less when the jury wished; the
history of defamation in the eighteenth century shows how the
courts reacted to such a possibility. Hence the search for some
test whereby liability for harm caused to someone otherwise than
by an attack upon his personal safety or the safety of his goods
could be restricted. In this way, as a result of such search, it
492 THE MODERN L A W REVIEW VOL 21

became settled that certain acts, if accompanied by malice (which

as already seen came to mean “ a n improper motive,” or as
McCardie J. put it a t a later date,J6 “ a motive which the law does
not approve”) gave rise to liability. However, the problem was
to determine which acts if done maliciously should be regarded as
unlawful. Out of .this development in the importance of the idea
of malice there arose another problem. Were there some acts
which, because they caused injury to others, could result in
liability without proof of malice?; or was malice essential to all
forms of liability which did not rest upon either one of the older
forms of action, such as trespass, or the more recently developed
action on the case for negligence? To some extent, and in more
modern terms, having regard to the abolition of the forms of action,
this problem has still not been authoritatively settled.
There are instances in respect of which it is now clear that it
is thc defendnnt’s act plus his malicious state of mind, his improper
motive, that together give rise to liability. As eventually worked
out by the courts these instances were really cases of the abuse of
a legal power to act. Indeed, in one particular instance-
defamation-the underlying juridical nature of such liability has
been made explicit; for proof of “express malice,” i.e., improper
motive, overcomes a plea of privilege or fair comment (which is
akin in nature if not form to privilege): and such pleas are
assertions of a legal power to act, which are therefore defeated by
proof of abuse, i.e., malice. For reasons of policy it was decided
a t various times by common law or statute that certain claims of
privilege, i.e., certain assertions of legal powers, could not be
overcome by accusations of malice, however successful: they were
absolute. Apart from defamation, the instances in which malice
is relevant to liability have been so developed as to make it neces-
sary for the plaintiff to plead and prove malice at the very outset
of his case. But these differences in burden of proof are of no
importance for the purpose of the present discussion. In all these
kinds of liability, defamation, injurious falsehood, malicious prose-
cution, and nuisance (of which more will shortly be said) the
plaintiff’s claim is really one of “ abusive use of rights,” as it is
sometimes called, but ‘‘ abusive use of legal powers ” as it should
properly be called. But such language, as Planiol ~uggested,~’ is
really logomachy. The very questions in issue are: what is an
abusive use of legal powers? when does such an abusive use take
place ? The substitution of “ malice ” or “ acting maliciously ”
is not very helpful. For since malice here means “ an improper
motive,” the questions must still be asked: what is an improper
motive?: when is a motive improper? These are the questions
which have been asked, and in broad outline answered, in the many
cases concerned with the torts mentioned above; and it is not my
36 Pratt v. B . M. A . [lSlO] 1 K.B. 244 at p. 276.
37 Quoted by Wnlton in 22 H.L.R. 501, at pp. 603-504.
SEW.1958 MALICE IN THE LAW OF TORTS 493

purpose to discuss those answers in detail. The subject of discussion

in this essay is not so much the detailed meaning of " malice " as
thc analysis and utility of the concept of malice and its place in
the theory of torts.
In this respect it is worth mentioning the importance of malice
( k ,motive) in nuisance.J8 For nuisance affords an important
illustration of the way in which '' improper motive " is related t o
the abusive use of legal powers and shows how cross-currents of
judicial opinion about malice have caused considerable difficulty.
It is often said, on the basis of such authorities as Mayor of
Bradford v. Pickles,39that '' malice " is irrelevant to the determina-
tion of whether a defendant is guilty of nuisance. But, on the
other hand, there are cases which seem to indicate that the
defendant's motive is one test of whether he is guilty of nuisance.
For, if it is accepted that liability for nuisance depends upon
whether the defendant's use of his land was a "reasonable user "
-which seems to be the law laid down by a number of author-
ities ''-the defendant's motive is very relevant to determine
whether his use was reasonable. The confusion about Pickles's
case, it is suggested, results from forgetting the previous decision 41
by the House of Lords (for reasons which are not relevant here,
but may not be altogether unconnected with the importance of
landowning) that the taking of water in such circumstances was
an absolute legal power, which therefore excluded the possibility
of defeat by proof of malice. But where there is no clear decision
in favour of saying that a certain course of conduct comes within
the scope of an absolute legal power, then it is open to a court to
decide that such power as the law permits an occupier of land to
enjoy must be exercised reasonably: hence the exercise of such
powers for an improper purpose is tortious, i.e., a nuisance. That,
it seems, is the explanation of such cases as Christie v. Davey4'
and Hollywood Silver Fox Farm v. Ernmett.'j The confusion
about malice & propos nuisance has been caused by fluctuating
views on what powers the law should allow occupiers of land; such
fluctuation of opinions reflects the changes that have occurred in
the genernl ideas of the community about the relations between
occupiers of land whether inter se or in respect of non-occupiers.
What is an abuse at one period is not a t another; and vice versa;
and in so far as the courts have not been forced to apply precedents
strictly they have been free to give effect to the changes in current

For n foller discussion, see Fridmnn, " Motive in the English Law of
Nuisanre." 40 Virginia L.R. 583.
39 [1895] A.C. 587.
40 Bamford v. Turnley (1860)3 B. & S. 62 at p. 84; Gaunt v. Fynncy (1872)
L.R. 8 ChApp. 8; Ball v. Ray (1872) L.R. 8 Ch.App. 467; Sanders-Clarkv.
Gtosoenor Mansions Co., Lld. [1900] 2 Ch. 373.
41 Chasemore v. Richards (1859)7 H.L.C. 349
42 [18931 1 Ch. 316.
43 [1936] 2 K.U. 468.
494 TEE MODERN LAW REVIEW VOL. 21

opinions about what occupiers should be permitted to do. This

is no more mysterious, nor more unjustified, than what has
happened in respect of liability for negligence. The difference lies
chiefly in respect of the speed with which the courts have altered
their opinions. Negligence, because of its greater immediate impor-
tance in the everyday business of the courts, has developed more
quickly than liability for " improper motives.'' But such develop-
ment has been taking place.
TO such an extent is this true that i t may well be that the
utility of " improper motive " cannot be said to have been circum-
scribed by the previously existing case law. For just as torts such
as defamation and malicious prosecution were developed in the
nineteenth century by the use of "improper motive," so it may
well be that in the twentieth century ('new torts, or, t o put i t
))

for the moment more neutrally, new forms of liability, may be in

the process of emerging by the same means. It was said earlier
in this essay that the courts have not yet said that whenever and
in all cases where a person causes harm from an improper motive
he will be liable in tort for such harm. They have not yet got t o
the stage of saying that whenever a legal power is exercised for an
improper motive it will create liability. Indeed, Lord Atkin once
said that it was impossible for the law to prevent all oppressivc
exercise of legal rights." But there are indications that the courts
are gradually moving in that direction, albeit slowly.
Thus in the '' wrongful expulsion from trade union cases there
))

are statements in judgments in this country " and Cnnada " that an
action for wrongful expulsion, a t least if brought against union
officials or others instrumental in procuring such expulsion (for
against the union itself an action for breach of contract is maintain-
able "), should be based on the improper motive of those procuring
the expulsion. It seems also that improper motive is important
in cases of excess of jurisdiction by statutory tribunals4'; or
exceeding powers of or making a judgment ordering
payment of money, as in the recent case of O'Connor v. Z s a a c ~ . ~ ~
Professor Street 5 1 has denied the relevance of improper motive in
cases of what he terms "abuse of statutory powers." But i t is
suggested'that the point is a t least an open one, and if there is
anything similar here to the torts already discussed which are
well-established instances of what might be termed the " abuse of
44 Ware d De Freoille Ltd. V. M. T. A . [l02l] 3 K.B. 40 at p. 01.
45 e.g.. Abbott v. Sullioan [1952] 1 K.B.189 at p. 2lG per Morris L.J.
46 Tunmy v. Orchard (1955) 3 D.L.R. 15 at p. 41 per Tritschler .J.; but note
the criticism of Rand J. in the Supreme Court of Cnnada: Orchard v. Tunney
(1057)8 D.L.R. (2d.),275at p. 280.
47 Bomor v. Musicians' Union [10GG] A.C. 104.
413 Abbot.! v. Sullioan [l052] 1 K.B. 189 ot pp. 200-205 per Dcnning L.J..
49 See the Ariatralian cnse, Trobridge V. Hardy (1055)04 C.L.R. 147.
50 [1956] 2 Q.B. 288.
51 Law 01 Torts pp. 371374.
SKIT. 1958 Al.\LICL.: IN TIIE I A W OF TORTS 4!J.i

common law powers” therc is ii good deal to be said by way of

argument in favour of making iniproper motive relevant to such
instances of liability.
I n this respcct there is much to interest the private lawyer in
the recent case of Smith v. Eust Elloe R u r a l District Council,”
although thus far it secms only to have excited interest on the part
of constitutional and administrative lawyers. The main point. i n
the Eust Elloe case was whether judicial investigation of thc
validity of a compulsory purchase order made in rcspcct of Mrs.
Smith’s house was barred by the provisions of par;igraph 1G of
P a r t I V of Schedule I t o the Acquisition of Land (Authorisation
Proccdurc) Act, 19-1’6. But it. was said in the Hoiise of Lords that
Mrs. Smith’s claim against the clerk of the council could nonetheless
be brought despite the statutory bar t o proceedings tigainst the
council itself and the Minister; and such claim was based on thc
ground t h a t “ t h e clerk knowingly acted wrongfully and in had
faith in procuring thc ordcr and its confirmation.” It is difficult
t o sec what Mrs. Smith’s cause of action could have been unless
i t is regarded as a claim for the abuse of a statutory power fnr
some improper motive, just. as thc espiilsion of :I person from a
tradc union mny be wrongfiil in that it is thc :tbuse of a common
Icw power (i.e., the poivcr to rspel a mcnibcr) for some improper
motive. In thc co1ir.w of i > r * * n on the case Mr, 1.1. W. R. Wadc
‘ did not elucidate the conclusion
..
. that it was possinlc IOI‘ a 1 1 1 cjficcr of the counc~ilto bc liahk
in damages even though thc n r c h itsclf wiis valid. The conception
itself is not an easy one, a t any rate as applied to the appellant’s
claim which was for darnagcs for trespass.” But it. was ncver
decided whether the compulsory purchase order was valid ; the
dccision was that it was unchallengcable-which may not amount
t o the same. Secondly, the appcllant’s claim against the clerk
was not framed in trespass. Shc claimed in trespass against thc
couiicil. I n respect of the clerk the appcllant claimed : “ A declara-
tion that he knowingly acted wrongfiilly and in bud faith in pro-
curing the ordcr or confirmation thereof ’’ and damages. Unless
it is suggested that the clerk was guilty of injiirious fiilschood, it is
difficult t o see what cause of action the appellant had apart from
some general notion of abuse of right or rathcr of abusc of stiltlltory
powers, or privileges, for an improper motive. Yet Lord Simonds
in the House of Lords suggested that. she had a claim of sonic
sort.54
Thew recent cases indicntc that therc is a growing conviction
that acting from an improper motive should give rise to liability
52 [:95(i] 0, W.L.R. 888.
53 [I9561 c.11.J.145.
5’ [l9!)(;] 2 W.L.R. a t p. 895: ~ f I.m t l \lorton. ibiti.. :it p. S97. F m m 3 report
I I I Tlre Ti1nc.v earlier this y : i r of n n appeal by N r s . Siiiith to tlie (’ourt of
App:iI for trial by jury, it \voiilJ : i p p w r that shc is bringing an action :igaiiist
tho clerk.
496 THE MODERN LAW REVIEW VOL 21

in tort in a greater number and variety of instances than were

permitted in the nineteenth century. The scope of ‘(malice in
this respect, a t any rate, has been considerably widened.
But “ malice ” has become of even greater importance through
the development of its other connotation, “ a wrongful and
unjustified intention.”

N
A convenient starting point for the discussion of the role of
“ wrongful intention ” in the law of tort is Lord Bowen’s famous
statement in the Mogul case that there is a cause of action when-
ever one person intentionally causes damage t o another without
just cause or excuse. ‘There can be little doubt that Lord Bowen
went too far; his statement did not correctly represent the position
of English law a t the time he spoke; nor does it do so today, as
Denning L.J. pointed out in Abbott v. Sullivan.s5 Were it true the
dif€iculties seen above would not have arisen. Doubtful cases could
have been decided on Lord Bowen’s principle. But Lord Bowen’s
statement was not entirely unfounded. I n the nineteenth century
there were instances when intentionally inflicting injury without
just cause or excuse (or in the present writer’s phrase “ acting with
a wrongful and unjustified intention ”) did give rise t o liability;
and this is s t i l l true. Indeed the instances may well have multi-
plied. The problem here, as with (‘improper motive,” has been
that the courts have changed their minds about what is and what
is not “wrongful ” or “ j u s t cause or excuse.” Rather than
attempt t o lay down any general principles they have been content
t o declare in individual instances whether what the defendant had
intended was wrongful and unjustified, in the same way as they
have been careful not t o create any general idea of what is an
improper motive. In this part of the law one of the main reasons,
if not the main one, for this caution by the courts has been because
in many of the instances in which wrongful and unjustified inten-
tion is the test of liability the law of tort has become what Prosscr
calls “ a battlefield of the conflict between capital and labour,
between business competitors and those who have conflicting claims
in the economic struggle.yy56 Onto that battlefield, courts in
England have been reluctant to stray unless compelled. When
they have entered that field they have taken care t o limit their
activities in i t t o what was absolutely essential, which, as with the
parallel case of monopolies in the law of contract (where judicial
avoidance of important issues led t o the Restrictive Trade Practiccs
Act), has compelled Parliament to intervene with a considcrable
amount of legislation regulating industrial life and providing for
the settlement, and perhaps the avoidance, of industrial disputes.

55 [1952] 1 K.B. 180.

56 Proeeer OD TO& at p. 23.
S E ~1958
. MALICE IN THE LAW OF TORTS 497

But the courts could not entirely avoid deciding some cases of
economic conflict; and in deciding such cases “ wrongful and unjust
intention” was the test they used. The early cases,57 which in-
volved physical acts of coercion or intimidation, could be dealt with
without great difficulty. They could be looked upon as varieties
of trespass. But in later cases 58 in which the coercion or intimida-
tion took the form of economic interference, without physical
manifestations, the simple rules of trespass were inapplicable;
instead the more complex and subtle notions centring around the
idea of intentional harm had to be used, just as in defamation and
malicious prosecution more was required than the mere infliction
of injury for liability to exist. Two important instances of liability
illustrate the development; conspiracy, and inducing or procuring
a breach of contract.
The growth of the tort of conspiracy from the Mogul case5’
to the Veitch case O 0 does not have to be retold here. The impor-
tant point for the purpose of this discussion is that the cases show
how the courts had t o create and nurture the flexible idea of
‘‘ acting intentionally and without just cause or excuse.” I n the
determination of when conspiracy was not actionable, through the
operation of “ just cause or excuse,” two factors were relevant;
first, the intention of the defendants, their state of mind. There
has to be what the courts consider rightful, i.e., one which the
courts can and should protect, as well as one which the courts
can regard as bona fide and not hypocritical. The second factor
is whether, in the light of the social and economic conditions
surrounding the circumstances, the combination is justified. If the
first factor involves the courts in permitting or proscribing states
of mind, the second involves them in determining what acts they
should permit. The Veitch case, while making “wrongful and
unjustified intention ” the test, leaves it open to the courts to
decide whether an intention is (a) wrongful and (b) unjustified,
and seems to indicate that ‘‘improper motive ” is relevant on both
these issues.“ Indeed, although there seems to be a valinnt effort
on the part of judges and jurists t o exclude L c improper motive ”
from any effective operation in this part of the law, I would
respectfully suggest that there is an affinity here with the instances
of liability considered in the previous section of this essay. In
other words, though men have the legal power to combine, such
power may only be exercised with a rightful and justified intention.
57 c.Q.. Garret v. Taylor (1620) Cro.Jnc. 567; Keeble v. Hickeringill (1706) 11
East 574n.: Tarleton v. McCaroley (1793) 1 Penko 270.
58 e.g., Lumley v. Cye (1853) 2 E. & B. 216; Boroen v. Hall (1881) Q.B.D.
333; Temperlon v. Russell [1H93] 1 Q.B. 715.
5’) Mogul S.S. Co., Ltd. v. McCregor Cow d Co., Ltd. [l892] A.C. 25.
60 Crofter Hand Wooen IIatris Tweed Go., Ltd. v. Veitch [1942] A.C. 435.
6’ E.Q., [1942] A.C. 435 at p. 443 (Lord Simon): p. 452, Lord Mnughnm; pp.
468-471, Lord Wright. Cf. Hughes, “ T h e Tort of Conspiracy ” (1952) 15
M.L.R. 20’3 at p. 211.
V O L . 31 33
498 THE MODERN LAW REVIEW VOL. 21

But improper motive destroys the legality of the exercise of the

power: for improper motive, in the language of the Veitc.h case,
shows that the intention of the conspirators is not bona fide, which
must mean here that their intention is not rightful and justified.
It is difficult t o see how else than by proof of improper motive it
would be possible t o show the necessary lack of bona fides which
in turn would reveal that the conspiracy was entered into from a
wrongful and unjustified intention; and the recent case of Huntley
V. Thornton,6a i t is suggested, supports this view; for the spite,
the personal grudge of certain of the defendants, i.e., their improper
motive, made them liable for conspiracy, whereas the desire t o
maintain union policy, a " proper motive " on the part of the other
defendants, was a good defence.
Similar arguments, i t is suggested, apply to the tort of interfering
with contractual relations, which developed from Lumley v. G ~ C . ~ '
It is true that in that case i t was said that '(malice "-which seems
t o have been used in the sense of spite or ill-will-was irrelevant;
i t is true that some later cases have repeated this ": i t is also true
that the intention to procure a breach of contract, that is the
knowledge of what one is doing, is the essential (apart from other
points which do not arise hereG5). But, on the other hand, the
courts hpve aeknowlcdged that interference of this kind with con-
tractual relations will not be actionable if i t is not wrongful and
unjustified. What determines these issues ? Lord Lindley in South
Wales Miners' Federation v. Glamorgan Coal C O . referred~~ to '' an
intention t o commit an unlawful act without reference t o spite or
ill-feeling." But when is an act unlawful or wrongful ? Some acts
are clearly unlawful, or wrongful, or involve what Lord Watson
in Allen v. Flood 6 7 categorised as " illegal means "; for example,
the application of violence to persons,68 the commission of a trespass
to the use of fraud.1° I n such cases it may well be that
the tort in question will not be inducing a breach of contract;
liability can be founded on some other nominate tort. But where
there is no such separate tort, where there is only pcrsuasion or the
application of " moral " pressure to produce a breach of contract,
how are the courts to decide whethcr the acts are unlawful or
wrongful, or the means are illegal, if not by the use of the test of
'' improper motive " ? I n other words, the power t o persuade or
in0uence others in respect of their contractual obligations is not to
be exercised for an improper motive. If thc rcstrictcd meaning

'5 D . C . Thomson d Co. v. b c a k i n [1952] (

66 [1W5]A.C. 239 at p. 255.
6' [la981 A.C. 1 at p. 96.
6.9 Tarleton v. M c C a u h y (1703) 1 Pcake 270.
69 G. W .K. Lld. v. Dunlop Rubber Co. (1926) 43 T.L.R. 376.
70 National Phonograph Co. v. Edison Bell Co. [1908] 1 Cli. 335.
SKIT.1958 MALICE IN TKE LAW OF TORTS 499

of malice (i.e., spite or ill-will) is dropped, and the broader meaning

of “ improper motive ” adopted, it becomes possible to solve some
of the difficulties of this part of the law. Such an explanation of
the approach to this form of liability is supported by a considera-
tion of Lord Davey% undelivered but reported speech in Denaby
and Cadeby Main Collieries, L t d . v. Yorkshire Miners’ A s s ~ c i a t i o n , ~ ‘
the oft-approved judgment of Petersen J. in Hodges v. W e b b , l a
and by cases such as Allen v. Flood itself (which, it is suggested,
still leaves open the relevance of “ improper motive ”), W a r e and
De Freville, L t d . v. Motor Trades Association7s and Brimelm Y.
C a s ~ o n .In
~ ~these cases the question was whether there was “ just
cause or excuse” for the inducement of the breach of contract
and this is only another aspect of the idea of “ wrongful intention.”

V
These two instances of liability for a “wrongful and unjustified
intention ” were cited as illustrations: they are not put forward a8
the only instances of such liability. It may very well be that some
of the examples of liability for “ improper motive ’)discussed in an
earlier section of this essay are struggling towards independent
existence as torts of wrongful and unjustified intention. At the
moment it is too early t o say that the courts are prepared to
recognise in the first place whether there exists an independent
tort of intention (as Dean Wright has referred to it 9, and secondly,
if such a tort exists, whether the previously mentioned examples
are instances of it. The present state of the law relating to malice
may be compared with the state of the law of negligence before
Donoghue v. Stevenson. We have at the present, first, instances
where liability depends upon “ malice in the sense of ‘‘ improper
motive ”; secondly instances where the independence of ‘‘ wrongful
and unjustified intention ” as a basis of liability has been recog-
nised; thirdly, the recognition that “ wrongful and unjustified
intention ” is connected with, is indeed founded upon, the notion
of “ improper motive.” 7e
For these reasons, it is suggested (although the suggestion is
by no means novel) that the term “ malice ” with its suggestions
of old controversies should be replaced by some similar terminology
to that used in this essay. The ambiguity of “malice” like that
of the word negligence, prevents the proper analysis of the kinds
71 [1906] A.C. 384 at p. 400, a malicious intention to spite and injure another
‘ I

without just cause.”

72 [lWO]2 Ch. 70.
7s [l921] 3 K.B.40.
74 [1924] 1 Ch. 302. Cf. also the rule of “malice ” (i.e., improper motive) in
enticement of D spouse: Bee the remarks of Denning L.J. in Cottlieb v. Cleiser,
T h e T i m e s , March 5 , 1955, cited by Deylin J. in Winchester v. Fleming
[1957] 9 W.L.R. 1023 at p. 1027, n. 3.
75 “ T h o English Law of Torts,” (1955) 11 University of Toronto L.J.84 at
. 87.
76 !kc, e.g.. Lord Mnugham in the Veitch Case “421 A.C. 435 at p. 459.
500 TEE MODERN LAW REVIEW VOL. 21

of liability that have been discussed in the previous pages; and

one result of faulty or impeded analysis is that development of
the law is delayed and made more difficult. The old dichotomy
between malice in fact and malice in law obscured rather than
clarified the relationship between the two: and in a part of the
law of torts where development is necessary and will become of
greater importance in the future it is especially necessary to be able
to analyse correctly.
It would seem today that the need for some kind of liability
based upon the intention to cause harm has been realised and
accepted by the courts; such acceptance, it is suggested, results
from the development of society to a stage in which there is more
scope for causing harm by acts which in themselves would not fall
within the boundaries of earlier torts based upon committing
physical assaults upon the person or property of others. Much
more harm in these days can be caused by words of persuasion
or encouragement, by speeches which end in resolutions and induce
courses of action not in themselves amounting to trespasses, by
using far-reaching statutory powers for perverted and undesigned
ends. To cope with such instances the older kinds of action would
be and have been shown to be useless. Were there no new
developments in the common law no remedy would be available
for such harm. But the common law, as always, has shown itself
to be sufliciently flexible to mould new actions out of the ideas of
a former age. Just as with the development of negligence from
the old action on the case to the new tort of negligence (which,
despite the arguments of Dean Wright and Professor S e n v ~ y , ~ ~
the English courts seem to have recognised, in place of individual
instances of liability for negligently caused harm), so with the old
idea of c‘ malice,” which, from being an element in certain forms
of liability, has widened its scope in many ways, until it looks very
much as though beyond such kinds of liability there is a new use
for c 6 malice ” as the foundation of a “ new 77 tort of intention.
Dean Wright does not agree that such a tort does exist, any more
than there exists a tort of negligence. But, with all rcspect, it is
suggested that, while the language of the judgcs sometimes allows
of doubt and confusion, there is behind that language the evolution
of the idea that, within the framework of the common law, a tort
of intention should exist, can exist, and is beginning to exist.7g
G . H. L. FRIDMAN.+

77 Op. cit., n. 75.

‘8 Cogitationa on Tori9 (1054) a t pp. 24-25.
79 For their very helpful criticisms and suggestions in the course of discussion
I am greatly indebted to Professor Raphael Powcll and Professor Dcnnis
Lloyd.
* Lecturer in Law, the University of Shefield.